Aaron Matthew Erskine v. Lela Ann Erskine

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D18-1785
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AARON MATTHEW ERSKINE,
Appellant,
v.
LELA ANN ERSKINE,
Appellee.
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On appeal from the Circuit Court for Santa Rosa County.
Marci L. Goodman, Judge.
December 14, 2018
PER CURIAM.
Appellant, the former husband, appeals the trial court’s non-
final order on temporary relief for spousal support. In this marital
dissolution case, Appellant raises two issues.
First, he contends that he was entitled to a hearing on his
exceptions to the magistrate’s order. We agree. Yoxsimer v.
Yoxsimer, 918 So. 2d 997, 999 (Fla. 2d DCA 2006) (holding that
trial court deprived the wife of due process and departed from
essential requirements of law when the wife was denied a hearing
on the exceptions); Knorr v. Knorr, 751 So. 2d 64, 65-66 (Fla. 4th
DCA 1999) (holding that Florida Family Law Rule of Procedure
12.490(f) derives from Florida Rule of Civil Procedure 1.490(h) and
the language of the rule providing for a hearing on exceptions to a
magistrate’s report has been held to be mandatory); Gutierrez v.
Gutierrez, 48 So. 3d 118, 119 (Fla. 5th DCA 2010) (holding that it
is “reversible error for a trial court to fail to conduct a hearing on
timely filed exceptions”); see also Fla. Fam. L. R. P. 12.490(f). On
remand, the trial court shall hold a hearing on the Appellant’s
Exceptions to the Magistrate’s Report and Recommended Order on
Wife’s Motion for Reconsideration.
Second, Appellant contends that the trial court erred in
awarding alimony and fees in excess of Appellee’s need, funding an
award by invading the principal of non-marital assets, and
ordering alimony and child support in an undifferentiated amount.
On this claim, we also agree. While temporary support awards are
within the broad discretion of trial courts, the record must contain
competent substantial evidence that demonstrates one party’s
need and the other party’s ability to pay. Buchanan v. Buchanan,
225 So. 3d 1002, 1003 (Fla. 1st DCA 2017). Awards, whether
temporary or final, should not be in excess of a recipient spouse’s
needs and an order awarding as much should be reversed. Lin v.
Lin, 37 So. 3d 941, 942 (Fla. 2d DCA 2010). Further, in awarding
attorney’s fees, lower courts must make specific findings as to the
hourly rate and number of hours expended. Giovanini v.
Giovanini, 89 So. 3d 280, 282 (Fla. 1st DCA 2012). When
determining the amount of an award, trial courts must look to all
financial resources of the parties, including cases in which “the
parties’ standard of living required invading the principal of non-
marital assets.” Stacpoole v. Stacpoole, 856 So. 2d 1131, 1132 (Fla.
1st DCA 2003). Here, the record is unclear as to whether
Appellant’s non-marital accounts were invaded during the
marriage to maintain a standard of living. Additionally, a trial
court’s determination of child support must begin with a
calculation of the parties’ income. Shaw v. Nelson, 4 So. 3d 740,
743 (Fla. 1st DCA 2009). Thus, further factual findings regarding
these accounts and a calculation of the parties’ incomes are
necessary.
Moreover, reversal is required when a trial court adopts a
proposed order for temporary support where some findings in the
order contradict the trial judge’s oral ruling. Duke v. Duke, 19 So.
3d 338, 339 (Fla. 2d DCA 2009). In the instant case, the trial court
bypassed the oral pronouncement imputing minimum wage upon
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Appellant and ordered an undifferentiated award to the Appellee
in contradiction to the ruling at the hearing. An undifferentiated
award such as this is improper because it renders this Court
unable to determine whether the trial court properly applied the
statutory child support guidelines. Nilsen v. Nilsen, 63 So. 3d 850,
851 (Fla. 1st DCA 2011).
REVERSED and REMANDED.
ROBERTS, MAKAR, and BILBREY, JJ., concur.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Trevor A. Thompson, Tallahassee, for Appellant.
Laura E. Keene, Pensacola, for Appellee.
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